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The
federal program to manage hazardous waste was established in 1976 by the
Resource Conservation and Recovery Act (RCRA). Under RCRA Subtitle C,
Congress directed the Environmental Protection Agency (EPA) to promulgate
standards applicable to persons who generate, transport, treat, store, or
dispose of such waste. Under the program, federal waste handling
requirements govern every phase of waste management, from its generation to its
final disposition and beyond (“cradle to grave”).

The stringent Subtitle C standards apply only to waste identified as “hazardous”
according to regulatory criteria established by EPA. This report discusses
waste excluded from the regulatory definition of hazardous waste pursuant
to amendments to Subtitle C in the Solid Waste Disposal Act Amendments of
1980. Sometimes referred to by the names of their sponsors, Representative Thomas
Bevill and Senator Lloyd Bentsen, the amendments exclude specific large-volume industrial
solid waste from Subtitle C, as follows:

• The Bevill Amendment—fly ash waste, bottom ash waste, slag waste, and
flue gas emission control waste generated primarily from the combustion of
coal or other fossil fuels; solid waste from the extraction,
beneficiation, and processing of ores and minerals, including phosphate
rock and overburden from the mining of uranium ore; and cement kiln dust
(42 U.S.C. §6921(b)(3)(A)(i)-(iii)).

• The Bentsen Amendment—drilling fluids, produced waters, and other
wastes associated with the exploration, development, and production of
crude oil or natural gas or geothermal energy (42 U.S.C. §6921(b)(2)(A)). The
exclusions were temporary, pending EPA study of each waste, followed by reports
to Congress and regulatory determinations explaining whether or not
regulation under Subtitle C was warranted.

Regulatory Determinations for Bevill-Bentsen Waste

EPA issued regulatory determinations for each type of waste between 1988 and
2002. With limited exceptions, the agency determined that regulation under
Subtitle C was not warranted. EPA noted that the exclusion is not
equivalent to determining the waste is nonhazardous. EPA identified
conditions under which management of each waste poses some threat to human health and
the environment. The exemption meant that Subtitle C’s strict cradle-to-grave
management may not be practical for the waste, but that other potentially
applicable state or federal requirements could be adequate to address
waste-specific risks. For example, wastewater excluded from Subtitle C may
be subject to National Pollutant Discharge Elimination System permitting
requirements established under the Clean Water Act (CWA) if its disposal
involves discharge to surface water or processing at a municipal
wastewater treatment facility.

Existing EPA Authority to Regulate Bevill-Bentsen Waste

Two categories of Bevill-Bentsen wastes that have recently drawn national
attention include wastewater generated from natural gas production that
involves hydraulic fracturing and coal combustion waste (CCW) generated at
coal-fired power plants (e.g., “coal ash”). That attention has been due,
in part, to changes in the volume or nature of the waste or as a result of
risks to human health and the environment associated with improper
management of the waste.

Date of Report: August 6, 2013
Number of Pages: 15Order Number: R43149Price: $29.95

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Tuesday, August 20, 2013

Hydraulic fracturing is a technique used to recover oil and natural gas from
underground low permeability rock formations. Its use along with
horizontal drilling has been responsible for an increase in estimated U.S.
oil and natural gas reserves. Hydraulic fracturing and related oil and gas
production activities have been controversial because of their potential
effects on public health and the environment. Several environmental statutes
have implications for the regulation of hydraulic fracturing by the
federal government and states.

An amendment to the Safe Drinking Water Act (SDWA) passed as a part of the
Energy Policy Act of 2005 (EPAct 2005) clarified that the Underground Injection
Control (UIC) requirements found in the SDWA do not apply to hydraulic
fracturing, although the exclusion does not extend to the use of diesel
fuel in hydraulic fracturing operations. The underground injection of
wastewater generated during oil and gas production (including hydraulic
fracturing) does require a UIC permit under the SDWA, as do injections for
enhanced oil and gas recovery operations. Under the Clean Water Act (CWA),
parties seeking to discharge produced water may have to apply for a permit
under the National Pollutant Discharge Elimination System. Under the Clean Air
Act (CAA), the Environmental Protection Agency (EPA) has issued new rules
covering emissions of volatile organic compounds from hydraulic fracturing
operations.

Provisions of the Resource Conservation and Recovery Act (RCRA) exempt drilling
fluids, produced waters, and other wastes associated with the exploration,
development, or production of crude oil, natural gas, or geothermal energy
from regulation as hazardous wastes under Subtitle C of RCRA. However,
these wastes are subject to other federal laws (such as the SDWA and the CWA),
as well as to state requirements. Facility owners and operators and other
potentially responsible parties could potentially face liability under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) for cleanup costs, natural resource damages, and the costs of
federal public health studies, if hydraulic fracturing results in the release
of hazardous substances at or under the surface in a manner that may endanger
public health or the environment.

The National Environmental Policy Act (NEPA) requires federal agencies to
consider the environmental impacts of proposed federal actions before
proceeding with them. An agency would be obligated to consider the impacts
of an action that involves hydraulic fracturing if that action takes place
on federal lands or when there is otherwise a sufficient federal nexus to hydraulic
fracturing.

Under the Emergency Planning and Community Right-to-Know Act (EPCRA), owners or operators
of facilities where certain hazardous hydraulic fracturing chemicals are
present above certain thresholds may have to comply with emergency
planning requirements; emergency release notification obligations; and
hazardous chemical storage reporting requirements. In August 2011, environmental
groups petitioned EPA to promulgate rules under Section 4 and Section 8 of the Toxic
Substances Control Act (TSCA) for chemical substances and mixtures used in oil
and gas exploration or production.

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